The Freeman Co.

THE FREEMAN CO. The Freeman Company and General Drivers and Helpers Union, Local No. 749, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 18-CA-2959 and 18-CA-3002 December 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 28, 1971, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondent, and the Intervenors 1 each filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. The Trial Examiner found, inter alia, that during the period between October 1969 and April 10, 1970, Respondent violated Section 8(a)(5) of the Act by negotiating with the Union with no intention of entering into a final or binding collective-bargaining agreement. We disagree. After conducting an organizing campaign during August and September 1969,3 the Union, on Septem- ber 22, filed a petition with the Board's Regional Office seeking a representation election among certain of Respondent's aircraft parts manufacturing 1 The following employees intervened at the hearing. Gerald Mach, Stanley Schoenberner, Harry Ugofsky, Ed Holec, Andy Nielsen, Edmund Rempfer, Ted Schneider, William Dvoracek, Sally Sudbeck, Kathy Boska, Jim Boska, Margaret Dvoracek, Ruth Sternhagen, Marie Lane, Louise Slagle, Judy Wieseler, Arlene McHenry, Fern Sternhagen, Josephine Braunesreither, Adeline Brown, Evelyn Jensen, Glenn Taggart, Alphonse Schrempp, Chris Christopherson, Phay Howen, Richard Wood, Kathleen Neville, Charles Huber, Elmer Anderson, Reuben Hieb, Wanda Welby, Karen Eilmis, and Kenny Kaiser 2 Respondent excepts to certain credibility resolutions made by the Trial Examiner It is the Board's established policy not to overrule a Trial 595 plant employees. At the same time, the Union wrote Respondent requesting recognition on the basis of the Union's claimed majority status. After initially declining to recognize the Union, Respondent's attorney, William Harding, met with Union Business Agent Clem Weber on October 1 and executed a recognition agreement without first conducting a card check. The agreement was executed in consideration of the Union's withdrawing its representation peti- tion, which it subsequently did. Weber had met with the employees on September 30 to discuss their problems and, at the October 1 bargaining session, he orally presented approximately 35 demands to Respondent. He also asked Harding for a list of employees showing their job classifications and pay rates. This information was supplied to the Union on October 23. No in depth discussion of the Union's demands occurred at the October 1 meeting and Weber, at its close, indicated that it would take the Union about 3 weeks to prepare written contract proposals, which the Union would then send to Attorney Harding. The Union sent its written proposals to Harding on October 23, noting that clauses concerning the workweek, overtime, wages, and job classifications and descriptions would be submitted in the future.4 The Union also asked for a meeting on November 3. By letter dated October 24, Harding confirmed this date for the meeting. The parties met on the evening of November 3. Weber, at Harding's request, read each of the proposed contract's 36 articles, explaining the Un- ion's understanding, of each section's language. Harding indicated that counterproposals to certain sections would be submitted, but that as to other clauses Respondent was not sure whether it would tender counterproposals. The Union agreed to certain changes in its proposals, which were sent to Respon- dent on November 6. At the close of the meeting Harding said he wanted to check his calendar for a date on which to resume negotiations. At this meeting, the Union also requested certain information regard- ing dates of hire, hours of work, and shifts. On November 11, Harding sent Weber certain corrections and additions to the Union's proposals and asked for a copy of a trust agreement referred to in the Union's proposed contract. He also indicated in Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 3 All dates are 1969 unless otherwise indicated. 4 Such proposals were apparently omitted by the Union pending receipt by it of the information requested on October 1. The wage data was received on October 23, and other materials concerning employee working conditions, e g., shifts and hours of work, were furnished the Union during negotiations. However, it never submitted the above-enumerated contract proposals. 194 NLRB No. 84 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his letter that he would require at least 3 weeks to prepare counterproposals. Harding suggested a meet- ing during the first week of December rather than during the November 17-21 period previously sug- gested by Weber. On November 18, Weber sent Respondent certain requested literature about the Union's pension plan and indicated that he was looking forward to a meeting with Respondent the first week in December. On November 25, Harding sent Weber information previously requested about the hours of work, dates of hire, and shifts. On December 11, Respondent sent the Union its counterproposal containing 60 articles. The next meeting was held on December 14. At this meeting, the parties discussed, inter alia, the transfer of employees between job classifications; the supervi- sory status of certain employees; the length of the then current workweek, which the Union contended was longer than 40 hours; and the number of stewards the Union would have. The counterproposals were discussed article by article through article 22, with some agreement being reached. The parties agreed to rewrite other clauses. Additional meetings were scheduled for January 5, 6, and 7, 1970.5 At the January meetings, the remainder of Respon- dent's counterproposals was discussed. Certain arti- cles were agreed to; some articles were bypassed; Respondent agreed to add to other articles or rewrite their language; and the Union agreed to rework the clause dealing with medical and maternity leave, as well as other provisions of its proposed agreement. However, as the record does not reveal the details of the discussions between the parties, it is impossible to determine what give-and-take, if any, occurred during these meetings. At the end of the January 7 meeting, the parties agreed to meet again during the last week of January. On January 14, Weber wrote Harding noting, inter alia, those proposals agreed to and commenting that Respondent had not granted any of the Union's demands. However, Weber agreed to send certain rewritten sections of the proposed agreement to Harding and meet again. On January 16, Harding suggested a meeting on February 2. He also forward- ed to Weber a list of employees by departments, as requested on January 5 or 6. On January 29, Harding inquired of Weber as to the Union's failure to confirm the February 2 meeting date. Thereafter, on January 30, Harding sent a letter recapitulating the proposals agreed on, those that the Union was preparing new language for, those Respondent was rewriting, and indicated that he would have to discuss certain articles with Respondent's owner and general manag- er, Ed Freeman, prior to the next meeting. On January 31, the Union called off the planned February 2 meeting. No further contact between the parties occurred throughout February 1970. During early March 1970, a petition circulated among the employees which stated that the employees wished to resign from the Union and no longer wanted to have the Union represent them. On March 6, the Union and Respondent received telegraphic copies of the petition signed by 32 of the then 59 unit employees. While the parties on March 1 had discussed resuming negotiations, on March 9 Harding wrote Weber noting that because of the scope of the support for the petition Respondent would appreciate the Union's comments concerning the propriety of continuing negotiations. On the same day, Respon- dent sent the Union a telegram stating that it desired to give the employees a wage increase which had been held up as the result of the contract negotiations and that, unless it heard from the Union by March 12, it would assume that the Union had no objection to the grant of this increase. On March 12, Respondent, not having heard from the Union, put into effect a general 5-percent wage increase. On March 9 and 20 and May 21 it also unilaterally made certain shift changes and reductions in work hours. On March 23, Weber wrote Harding stating that the Union desired to continue negotiating and hoped to meet with Respondent after Easter. On April 6, Harding replied, expressing a willingness to discuss some of the matters relating to resuming talks, including the Union's position in light of the antiun- ion petition. Weber responded by asking for a meeting on April 13. On April 10, Harding, noting a telephone conversation with Weber on April 9 in which Weber indicated that the Union had filed an unfair labor practice charge and the Union's failure to submit a statement of position with respect to the antiunion petition, declined to meet with the Union on April 13. Respondent subsequently filed a repre- sentation petition and on May 19 wrote Weber stating that no further negotiations would be scheduled because it doubted the Union's majority status. In concluding that Respondent did not bargain in good faith between October 1, 1969, and April 10, 1970, the Trial Examiner commented that after voluntarily recognizing the Union, Respondent ap- parently did not intend to commence immediate bargaining with the Union, as shown by his finding that Respondent did not furnish the wage rate information requested by the Union on October 1 until 6 weeks later, on November 12. However, the record shows, and we find, that Respondent mailed 5 Hereafter, all dates are 1970 unless otherwise indicated THE FREEMAN CO. such information to the Union on October 22, within 3 weeks of the request, and that the Union received it on October 23. The 3-week delay was explained by Harding in a letter to Weber on October 12 as occasioned by Freeman's temporary absence from the plant and Freeman's secretary's inability to release such material without Freeman's approval. Moreover, Weber does not seem to have been concerned about the delay in furnishing the information. The Trial Examiner's inference from his mistaken finding as to the date Respondent furnished the requested informa- tion is therefore unwarranted. At the second negotiation session, held on Novem- ber 3, the Union read its contract proposals, and Harding indicated that as to some of the clauses counterproposals would be made, but he was not sure whether counterproposals would be made to other clauses. The Trial Examiner commented that written counterproposals should have been ready for presen- tation at this meeting, or Harding should have made an effort to state them orally. The failure to do so, according the Trial Examiner, shows that Respondent was not bargaining in good faith. However, in view of the fact that Harding did not receive the Union's written proposals until October 27 and that the Union had required 3 weeks to prepare them, we attach no significance to the fact that Respondent was not ready with its own counterproposals only a week after receiving the Union's written demands. The Trial Examiner also finds evidence of bad faith in Harding's statement at the end of the November meeting that he would have to consult his calendar before agreeing to a date for the next meeting. According to the Trial Examiner, Harding should have done this before the meeting. We do not find this persuasive especially since there is no evidence that this minor incident was designed or utilized to delay. In fact, Weber did not object to Harding's expressed desire to check his calendar, and the parties subse- quently agreed on the date for the next meeting. At the November 3 meeting, Weber orally asked Harding for information about the employees' hours of work, shifts, and dates of hire. After the meeting, Harding apparently unsuccessfully attempted to telephone Weber to verify the information the Union wanted. Finally, on November 11, Harding wrote Weber asking the latter to contact him so that Harding could be certain he understood exactly the information required and thus could get it to Weber as soon as possible. Weber did contact Harding and, on November 12, Harding wrote Weber enumerating the information Harding was obtaining from Respon- dent. This information was furnished on November 25, about 3 weeks before the next scheduled meeting on December 14. The Trial Examiner apparently regarded Harding's November 11 letter as a delaying 597 tactic. We, again, disagree. The negotiating meetings were then in recess while Respondent prepared its counterproposals. Respondent furnished the informa- tion requested on November 3 well in advance of the next meeting (December 14) and in ample time for the Union to use it in preparing any additional contract proposals. The November 11 letter facilitated negotia- tions, we believe, by permitting Harding to provide the correct information thereafter, in timely fashion. The Trial Examiner also characterized Respon- dent's refusal to permit Weber to inspect the plant, while asking the Union how many stewards it proposed to have, as another tactic designed to draw out negotiations and inhibit agreement. We disagree since even without an onsite examination of the plant the Union could have obtained a sufficiently accurate picture of the plant layout from the employees whom it represented to determine the number of stewards it would need, especially since there were only about 80 employees involved. The parties met at negotiating sessions on Decem- ber 14, 1969, and January 5, 6, and 7, 1970. During these meetings, they discussed at length Respondent's counterproposals. While the record does not indicate exactly what was said at these meetings, it does show that all the articles in the counterproposal were discussed by the parties with agreement being reached on some clauses. The next meeting was scheduled for February 2, but the Union called this off and made no further attempt to meet with Respondent until March. Thereafter, Respondent refused to meet further with the Union because it had received the employee petition repudiating the Union. We do not believe that Respondent's conduct from October 1, 1969, the date of recognition, to March 6, 1970, the date Respondent received notice of the employee petition disavowing the Union, established that Respondent was not bargaining in good faith with the Union. The parties were negotiating an initial collective-bargaining contract. Respondent supplied the information requested by the Union, met with the Union at reasonable times and places to conduct negotiations, made counterproposals to the Union's proposals, and did agree with the Union on some clauses during negotiations. While progress was not rapid, there was some progress. The Union, however, at no point in the negotiations presented demands on such important items as wages, overtime, length of the workweek, job descriptions, and job classifications. It was the Union which canceled the scheduled Febru- ary 2 meeting and for approximately 4 weeks thereafter made no attempt to arrange further meetings. We hold, therefore, that the General Counsel has not proven by a preponderance of the evidence that Respondent did not bargain in good faith prior to March 6, 1970. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This, however, does not fully dispose of the refusal- to-bargain allegations if Respondent were still obli- gated to bargain with the Union during March and April 1970, when it concededly did refuse to resume bargaining with the Union and unilaterally changed certain working conditions. The Union was never certified as the exclusive bargaining representative of Respondent's employees, and therefore the 1-year certification rule is not applicable .6 However, in Keller Plastics,7 the Board held that where a bargain- ing relationship has been established as the result of voluntary recognition of a majority representative "the parties must be afforded a reasonable time to bargain and execute the contracts resulting from such bargaining." What is a reasonable time for bargaining depends on the circumstances surrounding each particular case. Here, Respondent bargained with the Union from October 1, 1969, to February 2, 1970, when the Union canceled the meeting scheduled for that date-a period of 4 months. After the February meeting was canceled, the Union made no attempt to resume negotiations for 1 month. In view of the period of actual good-faith negotiations, and the Union's failure to press the negotiations after February 2, we conclude that a reasonable time had been given the parties for the conduct of negotiations. If, therefore, Respondent thereafter believed in good faith on the basis of objective considerations that the Union no longer represented a majority of its employees in the appropriate unit then Respondent was justified in refusing to resume bargaining with the Union. Respondent's belief after March 6 that the Union had lost its majority was based on the receipt by it of a telegram wherein 32 of 59 unit employees indicated that they had resigned from the Union and no longer wished to have the Union represent them. This communication would appear to justify a good-faith belief in the loss of the Union's majority, unless, of course, Respondent was somehow responsible for the petition. The Trial Examiner found that Respondent did not instigate the antiunion petition in early March 1970. However, citing "ample evidence," the Trial Examin- er found that Respondent assisted and supported the petition. We agree that there is no evidence of 6 Ray Brooks v N L R B, 348 U S 96 7 Keller Plastics Eastern, Inc, 157 NLRB 583, 587 8 As none of the other 8(a)(1) violations found resulted from incidents occurring prior to Respondent's receipt of the petition, we find that they do not constitute evidence that Respondent supported and assisted the antiunion drive. 9 In any event, we would not adopt the Trial Examiner's finding that the grant of the wage increase was a unilateral act. Early in the contract negotiations, Weber had written Harding that the Union was not opposed to a wage increase being granted through negotiations prior to the finalization of the contract On March 9, Harding sent a telegram to Weber stating that Respondent desired to give a wage increase to its employees employer sponsorship of the petition; however, we are not persuaded that there is sufficient evidence to support a finding that Respondent assisted and supported the petition. The only evidence of assistance while the petition was being circulated consists of Supervisor Schneid- er's statement to employee Fender that if the latter signed the petition Schneider "practically could guarantee" Fender a raise. Fender did not sign the petition. Although Schneider's single unsuccessful attempt at solicitation on behalf of the petition violated Section 8(a)(1) of the Act, it is too isolated an incident to support a finding that the petition was thereby tainted by Respondent's support.8 After receiving the petition showing employee disaffection, Respondent put into effect a general wage increase, made certain shift and hour changes, and refused to bargain further with the Union on and after April 10. The Trial Examiner found that such conduct violated Section 8(a)(5) of the Act. However, inasmuch as we have concluded that Respondent then was under no duty to bargain with the Union, we do not adopt the Trial Examiner's finding that Respon- dent violated Section 8(a)(5) of the Act in this regard.9 As we have not adopted the Trial Examiner's finding that Respondent violated Section 8(a)(5) of the Act in any manner, we shall dismiss this allegation of the complaint.10 2. While we adopt the Trial Examiner's findings that Respondent violated Section 8(a)(1) of the Act by certain supervisor's statements," we-do not agree with his additional finding that these statements indicated that Respondent assisted and supported the antiunion petition, as noted supra. Moreover, while we agree that certain employees' hours were changed and reduced in violation of Section 8(a)(1), but not Section 8(a)(5), we do so because of the statements made to the employees at that time and place no reliance on the Trial Examiner's assertion that this finding is also supported by Respondent's encourage- ment of the antiunion petition. While Respondent unlawfully sought retribution from certain employees most active on behalf of the Union, it does not follow that prior thereto Respondent engaged in conduct designed to undermine the Union's majority status. and that if Harding did not hear from Weber within 3 days Respondent would assume that the Union had no objection and the increase would be put into effect. When Weber failed to express any objection, the wage increase was made operative. Holiday Inn Central, 181 NLRB No 160. is In view of our disposition of this allegation, we need not pass on Respondent's assertion that the complaint as drawn did not comply with the Board's Rules and Regulations 11 We find, contrary to the Trial Examiner, that Schneider's comment to Fender that management would be overwhelmed or happy if Fender and employee Ehnsmann signed the petition is not an unlawful promise of benefit within the meaning of the Act THE FREEMAN CO. 599 THE REMEDY Having found that Respondent engaged in certain unfair labor practices, the Board will order, Respon- dent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily reduced and changed the hours of employment of employees James Eli, Gary Fender, Robert Wittmei- er, and Alvin Hermann, the Board will order Respondent to offer them backpay for any loss of earnings they may have suffered as the result of such discrimination.12 The backpay for the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. We shall also order Respondent to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation'of backpay due. Having found that Respondent has not engaged in certain other unfair labor practices, the Board will dismiss those allegations of the complaint not specifically found herein. AMENDED CONCLUSIONS OF LAW Delete Conclusion 4 of the Trial Examiner's "Conclusions of Law" and substitute therefor the following: "4. General Drivers and Helpers Union, Local No. 749, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was, on October 1, 1969, and until approximately March 6, 1970, remained, the exclusive collective- bargaining representative of Respondent's employees in the appropriate unit, within the meaning of Section 9(a) of the Act." Delete Conclusion 8 of the Trial Examiner's "Conclusions of Law" and substitute therefor the following: "8. By reducing hours and making shift changes for employees Eli, Fender, Hermann, and Wittmeier because they were active on behalf of the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." Delete Conclusions 5 and 6 of the Trial Examiner's "Conclusions of Law" and renumber the remaining conclusions accordingly. 12 The General Counsel excepts to the Trial Examiner's failure to provide this remedy despite the Trial Examiner's finding that the hour changes were discrimmatonly motivated. Having adopted that finding, we agree with the General Counsel's contention and hereby correct the Trial Examiner's apparent oversight in not recommending the appropriate remedy DiVincenu Brothers, Inc, 156 NLRB 153 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Freeman Company, Yankon, South Dakota, its officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Making observations that a loss in overtime hours was due to a failure to sign an antiunion petition; a raise in pay could be guaranteed an employee if he signed an antiunion petition; that "things were going to get rough" if an employee did not stop talking about the Union; and that some employees would probably get back the overtime hours lost by their union activities if they were "good boys"; (b) Discriminatorily reducing and changing em- ployees' hours of employment because they have engaged in activity on behalf of a union; and (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer employees James Eli, Gary Fender, Robert Wittmeier, and Alvin Hermann backpay for any loss of earnings they may have suffered by reason of the discrimination against them, in, the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Yankton, South Dakota, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are i3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. MEMBER JENKINS, dissenting: Contrary to my colleagues, I agree with the Trial Examiner's findings that during the period between October 1969 and April 10, 1970, Respondent violated Section 8(a)(5) and (1) of the Act by engaging in "surface" or "sham" bargaining and by negotiating with no intention of entering into a final and binding collective-bargaining agreement. I also agree with the Trial Examiner, on the basis of the credible evidence, that the General Counsel has fully met his burden of establishing further 8(a)(5) violations on the part of the Respondent by unilaterally changing, reducing, and rearranging the hours of employment of employ- ees, by unilaterally putting into effect a general wage increase for its employees on March 12, 1970, and by refusing to meet and bargain collectively with the Union on and after April 10, 1970. Indeed, in my view, the Respondent has never met its obligation to bargain in good faith with the Union. As more completely set forth by the Trial Examiner, and as amply supported in the record, from October 1969 to May 1970, the parties held three negotiation sessions. At the first session on November 3, Respon- dent insisted that the Union orally read its complete proposal despite the fact that the Respondent had received this proposal well in advance of the meeting. At the second meeting on December 14, Respondent insisted on discussing in detail its own proposal making only the most minuscule adjustments on insignificant items. Indeed, a close examination of Respondent's proposals clearly reveal Respondent's lack of good faith in dealing with the Union. Thus, Respondent proposed and insisted upon the elimina- tion of many benefits then enjoyed by the employees while offering little or nothing in return. At the meeting of January 5, Respondent again limited itself to a discussion of only a few insignificant items. Indeed, as summed up by Harding in his letter of January 30, after 4 months of "bargaining," and after stripping away the Respondent's flood of letters, suggestions, questions, and delay, the Respondent had agreed only to the social security clause, the military clause, the voting rights clause, and the retirement clause. Indeed, these items were already obligated under other Federal and state laws and can hardly be viewed as significant agreements or even any type of bargaining by Respondent. The foregoing course of bargaining and continued delay by the Respondent compels the conclusion that Respondent failed to meet its bargaining obligations under Section 8(a)(5) of the Act. Respondent's efforts completely to thwart good- faith bargaining became even more patent from its conduct .in March. Thus, as found by the Trial Examiner, the natural and foreseeable consequences of its bargaining tactics began to appear in March when the employees became restive because there were no signs of fruitful contract agreement. While Respondent cannot be found to have instigated the antiunion petition, it is clear from the credited record evidence that it seized upon the opportunity, created by its own unlawful bargaining conduct, to assist and support the antiunion movement by further unlawful conduct. In this regard, as found by the Trial Examiner, the Respondent unlawfully threatened employees with reprisals and promised them benefits if they were to sign the petition. Significantly, for those employees like Fender and Wittmeier, who were trying to maintain union solidarity in the face of Respondent's unlawful conduct and who did not heed Respondent's threats that "things were going to get rough" if they did not stop talking about the Union or Respondent's "guarantee" of wage increases if the antiunion petition was signed, Respondent immedi- ately and unlawfully changed, reduced, and rear- ranged their hours of employment. And ultimately, as the coup de grace to the Union, Respondent unilateral- ly placed in effect a general wage increase for its employees. By April 10, Respondent abandoned all disguises, and refused to meet and bargain with the Union. Because the Trial Examiner's analysis of the evidence as I have outlined herein is more persuasive than that of my colleagues, I would adopt the Trial Examiner's conclusions and recommendations. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against our employ- ees because of their union activities by reducing and changing their hours of employment. WE WILL NOT threaten our employees with loss of overtime because they failed to sign a petition seeking removal of a union as the collective- bargaining representative, nor will we promise increased overtime if the employees cease their activities on behalf of a union. THE FREEMAN CO. 601 WE WILL NOT promise a pay raise to employees for signing an antiunion petition. WE WILL NOT threaten that "things will get rough" if an employee does not stop talking about unions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer employees James Eli, Gary Fender, Robert Wittmeier, and Alvin Hermann backpay for any loss of earnings they may have suffered by reason of our reducing their hours of employment because of their union activity. Dated By THE FREEMAN COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: Upon charges filed on April 13, 1970, and May 25, 1970, in Cases 18-CA-2959 and 18-CA-3002 respectively, by the General Drivers and Helpers Union, Local No. 749, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or Charging Party, against The Freeman Company, herein called Respondent, the Regional Director for Region 18 of the National Labor Relations Board, herein called the Board, issued a complaint on August 28, 1970, amended September 22, 1970, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 USC Sec. 151, et seq), herein called the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. I Corrections in the record, pursuant to motion of Respondent, are hereby made Pursuant to notice a trial was held before me in Yankton, South Dakota, on September 30 and October 1, 1970, where the parties were present, were represented by counsel, were afforded full opportunity to be heard by examination and cross-examination of witnesses, and were permitted to present oral argument and file briefs. Briefs were filed by the General Counsel, the Respondent, and the Intervenors on November 4, 1970. On the entire record of evidence,' and from my observation of the witnesses as they testified2 and on due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel established by a preponderance of the evidence that Respondent refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by refusing to bargain with the majority representative of the employees in an appropriate unit and by making unilateral changes in wages. I recommend that the violations of the Act be remedied by ordering Respondent to cease and desist from its illegal conduct and bargain in good faith with the Union for a year from this decision, if necessary, in an attempt to reach an agreement as to wages, hours, and terms and conditions of employment, reducing to writing any agreement so reached. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE EMPLOYER I find as true the admitted allegations of paragraph 2 of the complaint respecting the nature and volume of business carried on by the Respondent, a corporation of the State of South Dakota engaged in the manufacture and sale of aircraft parts at its principal place of business at Yankton, South Dakota and conclude therefrom that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION I also find, as stipulated at the hearing by the parties, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As noted earlier, the Respondent makes aircraft parts at its plant in Yankton, South Dakota. Its owner and active manager is Ed Freeman and its production superintendent is Earl Saugstad. Respondent's operation is divided into seven departments or divisions: Welding and cylinder division, inspection division, aircraft division, tool room, materials control, turret lathe division, and the automatic screw machine department. Eugene Schneider was foreman of the automatic screw department and he and Saugsted are admitted supervisors within the meaning of the act. William A. Harding, Esq., is an admitted agent of Respondent. A. Union activities and bargaining Union activities began in August 1969, when employee Gary Fender, together with other employees, decided to 2 Cf. Bishop & Malco, Inc, 159 NLRB 1159, 1161. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form a union at Respondent's plant and contacted the Umon. As a result, Clem Weber, business agent of the Union, met with Fender and other employees at Pearson's ranch, an outdoor park facility on the outskirts of Yankton. Weber spoke to the employees of what a union could do for them pointing out the various ways representation rights could be gained at Respondent. Weber left authorization cards with Fender and the others at this meeting which were to be executed by the employees and returned to the Union. Further meetings were held in September 1969 where cards again were distributed and solicited. Authori- zation cards also were solicited and collected during breaks at the plant, at the homes of employees, and off the plant property. At the Union meeting on the evening of September 20, Fender turned over to Weber the numerous signed authorization cards he had received from the employees. Upon return to his office, Weber wrote Respondent claiming majority status and demanding recognition. At the same time he filed a petition for an election with the NLRB office in Minneapolis. While initially refusing to recognize the Union, Respondent's attorney, William A. Harding, signed a letter of recognition on October 1, 1969, as follows: In consideration of [the Union's] withdrawing its petition for representation in the subject case, The Freeman Company agrees to recognize the said Union as the sole and exclusive bargaining representative of its employees in the unit described in said petition which is incorporated herein by reference and to begin negotia- tions immediately with the Union for a collective bargaining agreement covering the wages, hours, and working conditions of the employees described in the unit. At the October 1, 1969, meeting Weber orally outlined the Union's demands which he had just received from the employees at a meeting the evening before. According to the uncontradicted testimony of Weber, the Union wanted: job descriptions spelled out; something concerning longevi- ty; clean restrooms; the parking area to be fixed; another holiday; time and a half after 32 hours in holiday weeks; double time for Sundays and holidays worked; a workweek of Monday through Friday with time and a half for over 8 hours a day; 50 hours of work per week guaranteed; Friday paydays; seniority, vacation schedule changes; a provision for sick leave; funeral leave pay; jury pay; lost time due to injury on the job; an employee pension plan; 15 minute coffee breaks in midmorning and midafternoon; Respon- dent to pay for tools used in the work; the installation of proper ventilation and heat; profits of the vending machine to go to a recreation fund or Christmas fund; removal of the cleaning area from the women's toilet; adequate toilet ventilation; discontinuing the use of the ladies toilet for storage and assuring them more privacy; more than one stool for forty ladies; an employee smoking area; Respondent to permit employees to answer the phone; a 1- year contract; leadmen to get leadmen pay; cleanup time before the end of every shift to be on Company time; probably a dollar an hour increase in wages; aprons for employees who wanted them; a safety program with safety goggles and shoes for employees; the Company to provide for a safe floor; a cost-of-living clause in the contract; a dues checkoff provision; and personal clothing lockers. At this same meeting, the Union requested a list of employees showing their individual classification and rate of pay. This last request was complied with by Respondent in a letter of November 12, 1969, some 6 weeks after the request. On October 13 Harding wrote Weber a letter stating that Freeman would be out of town and he would be unable to get his authorization to release the information regarding job classification and wage rates. On October 23, 1969, the Union sent a written proposal (less economic demands) to Harding asking for a meeting on November 3, 1969. By letter dated October 24, Harding confirmed this date for the meeting. On November 3, 1969, at 7 p.m. the parties met. At that time, Harding advised Weber that the Respondent was not allowing anybody to take any time off to participate in any negotiations as far as any committeemen were concerned. At the Company's request the Umon first read aloud the entire written proposal which had been sent earlier to Respondent. At the meeting they discussed whether or not a committeeman would continue to be in the unit although he had been elevated to foreman before the meeting. In the reading of the proposals at the November 3 meeting, Harding indicated in several places where Respondent would make counterproposals and in other places where Respondent was not yet sure that there would be a counterproposal. Before the meeting broke up the Union had promised to submit additional proposal language on some portions to the Company and Harding was to check his calendar for a schedule for the next meeting and also he would work up his counterproposals. By letter dated November 6, Weber sent Harding what he had agreed to send him and stated that he would be available during the week of November 17 to November 21. Harding replied by letter of November 11, 1969, making some typographical error corrections and asking for a copy of a trust agreement referred to in article 31 regarding pensions. Harding was most solicitous about information he had been asked for at the meeting 8 days earlier on November 3 and wrote as follows: I also have some notes here about some information that you would like relating to the employees current work week and hours worked. I tried to get in contact with you by phone today, but was informed that you were out of the office and would be out for a day or two; so I left word with your secretary that I had called. I wanted to have an opportunity to talk with you about the information that you wanted so that I can be absolutely sure that I have all of the information you want jotted down in my notes; so, will you please get in touch with me at your earliest convenience and I will make sure that I get the information that you require out to you as soon as possible. As for the time for the next meeting Harding concluded his letter with the following: As for the time to meet again, since I have been out of town since our last meeting, and just got back, I have not had an opportunity to start working on our counter proposal yet. However, with this information that you have sent to me, and the trust agreement that I assume you can get to me within a week or so, I ought to be able THE FREEMAN CO. 603 to get going on our counter proposal this week. As for the meeting time, I realize that it took you a little over three weeks to get the original proposal ready, and I feel that it will take at least that long to get the counter proposal ready. From the discussions that I had with Mr. Freeman when I was in Yankton, I am under the impression that the preparation of a counter proposal will take at least several meetings with Mr. Freeman to adequately prepare a counter proposal on some of the sections and areas that you have proposed. Not having worked on negotiations before, I am understandably somewhat hesitant about putting out a counter proposal until I have had some opportunity to research the area and have adequately conferred with Mr. Freeman on the matter. However, I will certainly make every attempt to have a counter proposal ready so that we can have an opportunity to meet sometime around the first week in December. Harding then wrote a letter on November 12, 1969, in response to another phone call from Weber requesting wage rates, classifications, and the workweek. The letter told Weber that Harding was asking Freeman to compile "as soon as possible" the following:" 1) Information relating to the work week presently being worked by the production-maintenance employ- ees of the Freeman Company. 2) A listing of the hours currently being worked by the production and maintenance employees of the Freeman Company. 3) A listing of all the production and maintenance employees of the Freeman Company, listing the date upon which they started employment with the Freeman Company. On November 18, Weber wrote Harding enclosing the trust agreement in regards to the Teamster's pension fund and tried to confirm a meeting date the first week in December. By letter dated November 25, 1969, Harding sent Weber a sheet of paper containing the information previously requested by Weber having to do with the shifts and workweeks in the plant, with a list of 64 employees and their dates of hire. Then by letter dated December 8, 1969, Harding confirmed a meeting set for December 14 to discuss the Company's counterproposal, which would be sent shortly. By letter of December 11, Harding enclosed the Company's counterproposal. The parties met, as agreed, on Sunday afternoon, December 14, 1969. At this meeting they talked about how employees could transfer from one classification to another and who were supervisors, and they discussed the length of the workweek with the Company maintaining the employ- ees were working a 40-hour week with the Union maintaining that they had never worked a 40-hour week. Considerable time was spent on talking about how many stewards would be needed although the Union, not knowing the plant setup, did not know at that time how many stewards would be needed. The Company's counter- proposal was discussed article by article, section by section, up to and including article XXII. The parties agreed to rewrite article XIV of the Company's counterproposal relating to the military service. It was to be rewritten so as not to violate any Federal or state law. Harding to rewrite to comply with the Federal law and Weber to rewrite to comply with state law. Article XX, sections 1 and 2, were agreed to but not section 3. The Company's proposal concerning funeral leave without pay was agreed to, and, finally, section 4 of article XVII was agreed to be dropped. Money was not discussed. The parties agreed that the next meeting dates would be January 5, 6, and 7, 1970, but no place for the meetings was set. As planned, the parties met again on January 5, 1970. At that meeting, considerable time was spent discussing the, Company's proposed article XXIII relating to holidays which proposal, according to Weber, was less than the employees were receiving at that time. The article on vacations was discussed but no agreement was reached. The management rights clause was discussed with the Company wanting to submit a new clause to replace it. Discussion was had on leave of absences and whether or not actions granting or denying a leave of absence should be put into wasting. The Union was to submit its wage demands later on. There was no agreement on article XXVII-the guarantee of work, discharge, seniority, jury duty (company did agree to allow time off for jury duty), discrimination, and layoffs. They did agree on rehire, social security, and voting time for employees. The parties met again on January 6, 1970. At this meeting they agreed that they would attempt to have a meeting between January 26 and January 30, 1970, but no later meetings were ever held. On January 9 the Company sent the Union a letter with a pension plan, and on January 16 an insurance plan was forwarded to the Union. At the meeting on January 5 or 6, above, Harding asked Weber to agree to a proposal that there would not be any wage increases put into effect unless they were negotiated or unless it was through negotiations. He wished this to be in writing. Weber checked this with his attorney and found that this was what the law required but upon reflection he instructed his attorney not to sign such an agreement because he felt it could be put on the company bulletin board and used as argument to the employees that the Union, not then talking about wages, was in effect keeping the employees from raises the Company was willing to give them. The meetings had not been fruitful as to agreement. The position of the Union respecting those meetings is set out in the following letter to Harding dated January 14, 1970: Mr. Bill Harding Attorney at Law P. O. Box 2028 Lincoln, Nebraska 68501 Dear Bill: I am in receipt of your letter of Jan. 9th, 1970. In this letter you express great concern for many things. One thing you feel is that I must feel there is a hidden trick in everything the Company proposes. Well, perhaps it's an oversight (and I assume that it was) but your letter states that you were enclosing material on the insurance and pension plan in effect at 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Freeman Company. I find that I have not received anything on the insurance that is in effect, only did I receive the Equitable Life Assurance policy that is relative to the pension, plus the litature on the pension. This was not a hidden trick as you say, but certainly worthwhile looking into before agreeing that I had received the material you indicated. On the matter of Harry Smith not signing your wage agreement proposal: I did in fact ask Harry not to sign this, because I can't feel that this type of agreement is needed by either party in this case, and I certainly feel it could be used to great advantage by you against us at a later date. I further feel that if the Company is concerned about not being able to grant a raise at this time that this could and should be discussed at negotiation, because I certainly am not opposed to an increase being granted through negotiations prior to finalization of this contract. You refer to on again off again tactics in your letter, which you say causes you to reevaluate the results we are achieving. If I could detect any sincerity of negotiation on your part perhaps I could agree that our negotiations are, as you say, going smoothly. But then lets look at the record. Thus for the items we have agreed to are those you have submitted: 1. Voting time: You have agreed to let employees vote according to state law. 2. Social Security: You will pay the social security required by law. 3. Rehiring of Quits: You don't have to. 4. Military Leave: Agreed to in your first proposal. Now you submit an entirely new Article. We agreed with that also, then you want us to write more into it. 5. Retirement: Agreed. 65 retirement age. 6. Discrimination : Same as law provides. Perhaps more could have been agreed to if the Company would have submitted articles that were in effect now rather than proposing less than what is in effect now. (Holidays). Then lets look at the Articles the Union submitted that have been agreed to. I may be overlooking something but I can't recall of anything we submitted that you have agreed to. Not the best record for four (4) meetings. You keep requesting the Union to submit proposal on items such as stewards How many do we want? When at the same time you refused and continue to refuse to allow me to inspect the plant so that I can properly determine how many would be required. Maybe you are right that my so called on again-off agam-will delay our reaching an agreement, however I doubt if it will delay it more than your position of-offer nothing-agree to nothing. I will send the rewritten articles you have requested in another letter as soon as I have completed them, and do expect to hear from you the end of this week as to a date you can meet again, as we agreed to in our last meeting. SINCERELY, CLEM WEBER BUSINESS REPRESENTATIVE LocAL 749 CW/vin Additional communications between the parties took place as follows: On January 14 Harding wrote Weber about a new part-time employee named Christopherson and the possible need for a clause on part -time employees. On January 16, 1970, Harding wrote Weber enclosing the Bankers' Life Insurance plan, which he said had been inadvertently left out of the January 9 letter , and a list of the employees broken down into departments , as requested by Weber in the meetings of January 5 and 6 . Harding closed by showing that it would be difficult if not impossible for him to meet on January 26-30 and he suggested the next meeting be Monday, February 2, 1970. On January 29 Harding again wrote Weber asking for confirmation of the Meeting for February 2. On January 30, 1970, Harding wrote Weber stating his understanding of what the parties had agreed to and what each party was going to do about particular clauses. The Union called off the planned meeting by telegram on January 31, 1970, and this was acknowledged by the company by letter of the same day. On March 9, 1970, Harding wrote Weber a letter notifying him of the receipt of a telegram dated Friday, March 6, 1970, wherein 32 employees in the bargaining unit (that they did currently place at approximately 59 employees) indicated that they had resigned from the Union and no longer wished to have the Union represent them. He asked for Weber's comments regarding the propriety of continuing negotiations with the Union. On the same day Harding sent a telegram to Weber notifying Weber of the Company's desire to give a pay increase and telling Weber that if he did not hear from him in 3 days the Company would assume that the Union had no objection and the wage increase could be put into effect. The telegram related that this wage increase was an increase which had been held up due to the wage negotiations. On March 23, 1970, Weber wrote Harding that since he had returned to his office that he noted that there were "quite a few transactions" that had taken place prior to discussions with him and that it was still the desire of the Union to negotiate with the Respondent, requesting a meeting after Easter. Harding replied to this on April 6 again requesting a statement of position regarding the legal propriety of continuing negotiations before scheduling another meeting. Weber replied to this by letter dated April 8 requesting a meeting for April 13. Harding replied on April 10 that inasmuch as he had not received a statement of position from the Union regarding the resignations and in view of the fact that he understood the Union filed unfair labor practice charges with the Board (filed April 13, 1970) that he would not meet on April 13 but would be back in touch to discuss the possibility of further negotiating meetings. The last letter from Harding to Weber was dated May 19 in which he advised the Union that the Company questioned THE FREEMAN CO. 605 the majority status of the Union and notified the Union that it had filed a representation petition for an election (Case 18-RM-717). It was stipulated that on March 12, 1970, Respondent granted its employees a general wage increase of 5 percent. This followed a telegram dated March 9, 1970 from Harding to Weber which said, "The Company would like to give a pay increase which has been held up due to pending negotiations over the matter of negotiated wage increases and unless I hear from you to the contrary by Thursday, March 12, 1970, the Company will assume that the Union has no objection to the Company giving this wage increase." There was no evidence that the Company ever brought up this desire on its part at any of the meetings. Throughout early March 1970 two employees, Gerald Mach and Stanley Schoenberner, circulated an antiunion petition among the employees at the plant and sent a telegram to the Company on March 6, 1970, disavowing the Union, as noted above. On March 9, 1970, hours of work were reduced and shift rescheduling was made unilaterally by the Company for employees James Eli, Robert Wittmeier, Dennis Kleinsch- mit, Dan Ehrismann, George Richmond, and Gary Fender. Similar changes were made on March 20, 1970, for employees Alvin Herman, Norman Campbell, and Gilbert Novotny. Similar changes were made on May 21, 1970, for employee Wayne Rempp and George Richmond. The 8(a)(5) issues 1. As of October 1, 1969, when Harding signed the letter of recognition of the Union by Respondent, there were 69 employees in the unit.3 If the Unioii represented 35 of these employees it would have a majority. Evidence was adduced at the hearing and I find that 38 employees4 voluntarily executed cards authorizing the union to represent them for purposes of collective bargaining and turned them in to the Union by that date. Accordingly, I find that on October 1, 1969 the Union represented a majority of the employees in the appropriate unit. I also find, as admitted by the parties, that the appropriate unit, within the meaning of Section 9(b) of the Act, is, All machinists, including production workers, gener- al laborers, and inspectors of The Freeman Company at its plant in Yankton, South Dakota, excluding guards, office clericals, and supervisors as defined by the Act. 2. As noted above, on October 1, 1969, Harding recognized the Union for Respondent as the majority representative of the employees in the above unit. This created a legal and binding relationship for a reasonable period of time to bargain and execute the contracts resulting from such bargaining. Keller Plastics Eastern, Inc. 157 NLRB 583, 587; Ozella Harrington, d/b/a, Kimbrough Trucking Co., 160 NLRB 954, 957, 958. The General Counsel contends that the Respondent did not bargain in good faith with the Union within the 3 This excludes Linda Leise by Respondent 's admission that she had been inadvertently added to the list introduced in evidence as G C Exh. 2. 4 Elmer Anderson, Mary Bicknell, Beverly Brunke, Norman Campbell, Ray Doering, Alex Drappeau, Dan Ehnsman, Patricia Ehrisman, Karen Eilmes, Charlotte Hohn Eli, James Eh, Gary Fender, Joanne Graves, Ruth Hansen, Sharon Hauseman, Alvin Hermann, Rita Hille, Evelyn Jensen, meaning of the Act in that a) during the period between October 1969 and April 10, 1970, it negotiated with the Union with no intention of entering into any final or binding collective-bargaining agreement; and b) commenc- ing on or about March 9, 1970, and thereafter it refused to bargain collectively with the Union as the exclusive bargaining representative in the above unit by 1) unilateral- ly, in March, April, and May 1970 changing, reducing and rearranging the hours of employment of employees James Eli, Gary Fender, Alvin Hermann, and Robert Wittmeier; 2) On or about March 12, 1970, unilaterally putting into effect a general wage raise for its employees in the unit; and 3) on or about April 10, 1970 refusing to meet and confer with the Union for the purposes of collective bargaining. As to a), I find the General Counsel has sustained his burden of proof that Respondent did not bargain in good faith in the period between October 1969 and April 10, 1970, in that its negotiations with the Union were carried on with no intention of entering into any final or binding collective-bargaining agreement. So-called "surface bar- gaining" of Respondent began with the excessive delay of some 6 weeks before it gave the Union the vital and easily available information listing employees with their individu- al classification and rate of pay. Delay of this nature was crucial, of the essence, and in this case it was deliberate as will now be shown. The union organization drive, which began in August in an outdoor park, culminated in authorization cards from more than half of the employees by October 1, 1969. A petition for an election had been duly filed with the Board in September 1969, at the time the Union notified Respondent of its majority status and demanded recognition. If this election had been held and had the Union received a majority of votes, (a not unusual occurrence under these circumstances), the Board in due course would have certified the Union as the majority representative which authority would be unchallengeable for a 1-year period. At first the Respondent questioned the majority claim but then agreed to recognize the Union as the majority representative and "begin negotiations immediately" provided the Union would not go ahead with the election. This was agreeable with the Union, as could reasonably be expected, as it thus would be able to commence bargaining immediately without having to delay until such time as the election was held and all the time- consuming procedures had run their course before Board certification. But the evidence reveals that Respondent had no intention of "immediately" bargaining. The Union Representative orally outlined the demands of the employ- ees on noneconomic benefits at the meeting on October 1, 1969, but needed a listing of all the employees showing their classification and rates of pay before it could fashion a proposal on wages and economic fringe benefits. At that meeting it asked for such information. After almost 2 weeks had lapsed, on October 13, 1969, the one authorized to bargain for Respondent wrote Weber of the Union that the owner of ,Respondent was out of town and his authorization Dennis Kleinschmit, Danny Kruse, Jim Lee , Arlene McHenry, Kathleen Neville, Alton Nieman, Gilbert Novotny, Ed Reiser, Edmund Rempfer, Wayne Rempp, George Richmond, Theodore Schneider, Ben Sheffield, Harold Don Stewart, Sandra Taggart, Harry Ugofsky, Wanda Welby, Louis Willms, Adeline Willcuts, and Robert Wittmeier. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was needed to release the needed information. This had not been told Weber on October 1. In fact the letter of recognition imphedly gave Harding the authority to bargain which would include the furnishing of necessary information. Some 10 days more elapsed and still this information had not been furnished when the Union on October 23, 1969, sent Harding a written proposal (less proposals as to workweek, overtime, wages, classifications, and job descriptions), which it had prepared since October 1, 1969, and requested a meeting on November 3, 1969. The parties met on November 3, 1969, with the requested information still not given the Union. Indeed, although the Respondent had had the written proposals of the Union for some 10 days it had no counterproposals ready but insisted on spending the time of the negotiators by having the Union representative read aloud all of the Union's proposals. Now there is no denying that hard-nosed collective bargaining may involve some gamemanship but it is also true that collective bargaining, as envisioned by the Congress when the Act was passed, is a two-way street with employers being burdened to actively bargain also. It was not a game with one player, the Union, always having to make the first move with the other player, the employer, only countering. Further at this November 3, 1969, meeting, the Respon- dent was too vague as to contract proposals to be found to be bargaining in good faith. This fact is established by Respondent's indicating as to some provisions that it was not sure whether it would make counterproposals. How much longer it would take to make up its mind is not indicated nor was it indicated why more time was needed. As to those provisions where Respondent said it would make counterproposals, the written counterproposals should have been ready then or an effort made to state them orally. Collective bargaining should bear some relationship to normal business practices. It is not an occult art. Even the unpreparedness of Harding to be able to set a time of another meeting smacks of lack of effort and an intention not to bargain in good faith. He said he would have to check his calendar before setting a new meeting. There appears to have been no reason why he could not have done this before the meeting. Accordingly it is merely a tactic to stall negotiations. Three days after the November 3 meeting the Union on November 6, 1969, sent Harding what it had agreed to send him but again Harding was not prepared to further the bargaining. It wasn't until another 5 days elapsed before he wrote on November 11, 1969, correcting some typographi- cal errors in the Union's proposal and asking for a copy of a trust agreement referred to in the Article therein on pensions. In this letter also appears an unctuous statement that Harding needed to talk to Weber to "be absolutely sure" he knew how to tell Weber what the employees' current workweek and shifts were-information requested at the meeting 8 days earlier. This statement is sufficient to cause a weak stomached serious negotiator to vomit, a practice not to be encouraged in bargaining. After a phone call from Weber, Harding wrote him on November 12 that he was asking Respondent to compile "as soon as possible" the information requested. It was also on November 12, 1969, some 6 weeks after the request of October 1, 1969, that Harding sent Weber the list of employees, their classifications, and rates of pay. Also included on this list was working hours, shift information, and dates of hire. An illustration of another tactic engaged in by Respon- dent to draw out the negotiations and not reach agreement had to do with the provision as to the number of stewards the Union could have. Respondent asked several times for the Union to tell it how many stewards it proposed, yet Respondent would not let Weber on the premises to see the geography of the plant in order to determine how many stewards were needed to service the employees. And considerable time was spent in negotiations discussing this problem. The above is indicative of the attitude of the Employer to delay and frustrate bargaining efforts made by the Union without ever making a good-faith effort on its part to bargain. Other meetings were held until January with nothing of substance determined. Thus three months elapsed with the Respondent never appearing to be coming to the table to bargain. In situations like this where the employees have had no history of union representation and in a state not noted for its industrial aspects, the natural and forseeable consequences of no bargaining contract begin to appear. The employees become restive, the first signs of eventually wanting to revoke their authorizations. Again, as noted earlier, had the Union been certified by the Board after an election, this phenomenon would be of no consequence as the Respondent would be required to bargain in good faith for 1 year. But in this case the Respondent stands to gain by stalling because it only has to bargain for a "reasonable length of time" 5 and is under no duty to bargain if there is no majority representative. There, is no evidence that Respondent instigated the antiunion petition in early March 1970 but there is ample evidence developed under section B hereafter that it assisted and supported it, and I so find, by favoring employees who signed it, and the above is evidence that the stage had been set deliberately by Respondent for the petition and for revocation of authority to bargain. Accordingly, I find that Respondent has violated Section 8(a)(5) of the Act by not bargaining in good faith for a reasonable length of time after its voluntary recognition of the Union on October 1, 1969, and I will order it to cease and desist from its refusal so to bargain and to bargain in good faith with the Union for at least a year from this decision putting in writing any agreements reached. As for b) of the contentions of the General Counsel, that Respondent refused to bargain collectively with the Union from March 9, 1970, and thereafter, I find that Respondent violated Section 8(a)(5) of the Act; 1) by unilaterally changing, reducing, and rearranging the hours of employ- ment of employees James Eli, Gary Fender, Alvin Hermann, and Robert Wittmeier; 2) by unilaterally putting into effect a general wage raise for its employees in the unit on March 12, 1970; and 3) in refusing to meet and bargain collectively with the Union on and after April 10, 1970. Respondent has never met its obligation to bargain in good faith with the Union. 5 Frank Bros Company, 321 U.S. 702, 64 Sup. Ct. Rep. 817. THE FREEMAN CO. 607 B. The 8(a)(1) Violations 1. Employee Robert Wittmeier credibly testified, with- out contradiction, that his Supervisor, Schneider, (who also was a friend and relative) came to his work station at a point in time after he had had his hours cut and told him (in the words of Wittmeier), ". . . he thought if I would have signed the [antiunion] petition I wouldn't have lost any more hours."6 This interferes with, restrains, and coerces an employee in his right to freely engage in union or concerted activities guaranteed by Section 7 of the Act and by so doing it violates Section 8(a)(1) of the Act. This point need not be labored. The cases are legion supporting the proposition that an economic benefit [more overtime work] withheld because of union loyalty [failure to sign an antiunion petition] and support interferes with, restrains, and coerces an employee in his Section 7 rights. That Schneider was a friend and relative only gives more force to the statement. 2. Employee Gary Fender credibly testified that Schneider stated to him at a coffee'break in early March 1970, at a time when the antiunion petition above was being circulated, that if he would sign the petition Schneider "practically could guarantee me a raise by signing it." Fender also credibly testified that Schneider told him Production Superintendent Saugstad ". . . and the compa- ny would be overwhelmed or happy if we [employees Wittmeier and Ehrismann] signed this petition." Schneider admitted having conversations with Fender about the Union while on coffee breaks but could not recall exactly what they talked about. I find this conversation with Fender, as testified to by Fender, violates Section 8(a)(1) of the Act in that 'a promise of benefit [a raise] made to influence an employee to cease his union activities coerces and restrains an employee in exercising his Section 7 rights. Likewise telling Fender that the production superintendent would be happy if Fender signed the antiunion petition violated Section 8(a)(1) of the Act as it implies that the employer-employee relationship between the Company and Fender would be strained if he didn't sign and this obviously interferes with the free exercise of his rights to participate or not participate in union activities-rights guaranteed him by Section 7 of the Act. 3. Fender also credibly testified that Schneider, in March 1970, told him "things were going to get rough" if he did not stop talking about the Union. This is an obvious threat of reprisal and it likewise violates Section 8(a)(1) of the Act for the same reasons as given above. 4. Fender also credibly testified that after he had had his hours changed in March 1970 Schneider came to him at his machine and said, "If you boys are good boys for the next couple of weeks, you'll probably get your hours back." As Schneider was supervising employees who, like Fender, were active in the initial union organization work and who were trying to maintain Union solidarity during the course of the negotiations for a collective-bargaining agreement, I find this remark to Fender referring to "you boys" is directed to the union leadership in his department and it 6 Wittmeier reaffirmed this testimony after being shown his previous affidavit which differed in that in it he said that Schneider told him "if you would have signed the [antiumon] petition you would have been getting more hours." I find this difference in testimony to be trivial Obviously if a implies that the benefit of more work (and overtime money) will come to them if they curtail their union activity. This likewise is an independent violation of Section 8(a)(1) of the Act for the reasons stated above. C. Additional Alleged 8(a)(1) Violations The complaint alleged additional violations of Section 8(a)(1) of the Act by a reduction in hours and shift changes in the employment of employees Eli, Fender, Hermann, and Wittmeier. These changes and reductions took place on March 9, 1970, for Eli, Fender, and Wittmeier and on March 20, '1970, for Hermann. Each was given a slip reading "We regret that the amount of new orders coming in here made necessary a reexamination of overtime hours in certain categories. We hope that this will not continue for very long." A suspicion that union activists were discriminated against because of their union activities is nurtured by the fact that on March 9, 1970, the date of the changes and reductions for three of the four employees named, the Company, by Harding, wrote Weber that it had just received a telegram wherein 32 employees in the bargaining unit (not including these four employees) had indicated they had resigned from the Union. Respondent had knowledge of the Union activity of these four employees, it had attempted, unsuccessfully, to ' get them to join the antiunion effort, it was knowingly hostile to the Union, and it had been violating the Section 7 rights of the employees, as noted above, in which the reduction in hours was involved. These factors establish a prima facie case for the General Counsel which must be countered by evidence from Respondent or a violation of Section 8(a)(1) of the Act is made out by a preponderance of the evidence. Respondent Company has not overcome this prima facie' case. The evidence is that Eli and Fender were so active in leadership for the Union that they were never asked to sign the petition and Hermann and Wittmeier both flatly refused to sign it. The petition had been circulated freely in the plant and, from the evidence referred to above and from their testimony of vague recollections of hearing about it contrary to their denials, I find that Schneider and Saugstad 7 knew of its circulation. The Company was favoring the antiunion petition by encouraging an employ- ee to sign it, as found above. Other employees also had their hours reduced, and this tends to support the Company's position that hourly changes were made because of economic circumstances and not antiumon considerations. But the hourly changes were plantwide with no direct evidence that the automatic screw department, a small unit of four doing all of this type of work, would be effected at all or to any extent. Indeed, Schneider told Fender, noted above, "If you boys are good boys for the next couple of weeks, you'll probably get your hours back." This statement related to union activities and not more future business orders. Fender's changes were not explained by Respondent. I find the General Counsel has sustained his burden of proof and that the changes in hours person doesn't lose hours he would be getting more hours than he was working after losing the hours. T James Eli credibly testified he asked Saugstad to have the circulation of the petition stopped. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and work were violations of Section 8(a)(1) of the Act as they interfered with, coerced, and restrained the employees in their Section 7 rights. D. The Intervenors The 33 named intervenors in the caption of this case argue that they revoked their authorization to the Union to represent them and bargain for them by their signing the antiunion petition, above, on March 6, 1970. However, under the circumstances of this case, these revocations cannot be honored because they result from the above unfair labor practices of the Respondent. Once the bargaining relationship has been established by a majority of employees in an appropriate unit, by means other than certification, the Union must have a reasonable time free from defection in which to bargain with the employer. The Union had no reasonable time in this case and hence any revocations are untimely and of no effect. See Brooks v. N.L.R.B., 348 U.S. 96,75 Sup. Ct. Rep. 176, (1954) for a full discussion, although in that case the Union had been certified by the Board and the certification was held to be good for a reasonable period, ordinarily 1 year. A recognition agreement should, be entitled to the same term as a certification yet this point need not be decided in this case because only 5 months are involved and the "reasonable period of time" the Union had had not yet elapsed. THE REMEDY Having found that Respondent engaged in unlawful refusal to bargain with the Union in good faith in violation of Section 8(a)(5) of the Act, and in independent violations of Section 8(a)(1) of the Act, I shall recommend that it be ordered to bargain in good faith upon request and to cease and desist from such Section 8(a)(5) and (1) unfair labor practices in the future. I shall order Respondent to bargain in good faith with the Union, as the recognized bargaining representative in the appropriate unit, for a reasonable length of time, at least a year, from the time when it commences to bargain. See: Mar-Jac Poultry Company, Inc. 136 NLRB 785; Commerce Company, d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied, 379 U.S. 815; Burnett Construction Company, 149 NLRB 1419,142 1, enfd. 350 F.2d 57 (C.A. 10). IV. THE EFFECT OF THE UNFAIR LABOR, PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All machinists, including production workers, gener- al laborers, and inspectors of The Freeman Company at its plant in Yankton, South Dakota, excluding guards, office clericals, and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. General Drivers and Helpers Union, Local No. 749, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was on October 1, 1969, and at all times thereafter has been the exclusive collective-bargaining representative of Respondents' em- ployees in the appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the above-named labor organization in good faith, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By making unilateral changes in wages of all employees on March 12, 1970, in hours of employment of James Eli, Gary Fender, Alvin Hermann, and Robert Wittmeier, and in refusing to bargain collectively with the Union on and after April 10, 1970, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and'(5) of the Act. 7. By making observations that a loss in overtime hours was due to a failure to sign an antiunion petition, that a raise in pay could be guaranteed an employee if he signed the antiunion petition, that a supervisor and an official of Respondent would be happy if an employee signed the antiunion petition, that "things were going to get rough" if an employee did not stop talking about the Union, and that some employees would probably get back their overtime hours lost by union activities if they were "good boys" for a few weeks, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By encouraging employees to sign an antiunion petition and by reducing hours and making shift changes for employees Eli, Fender, Hermann, and Wittmeir because they did not sign the petition, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]